July 23, 2020 DOL Issues New Guidance Regarding FFCRA, FLSA, and FMLA
Since the Families First Coronavirus Response Act (“FFCRA”) was signed into law on March 18, 2020, the Department of Labor (“DOL”) has issued several rounds of guidance, a temporary rule, and a final rule interpreting the new law and defining employers’ obligations to provide paid sick leave and paid family leave to employees who are unable to work for reasons related to the COVID-19 pandemic.
On April 1, 2020, we issued an E-Update with a guide to the FFCRA and the DOL’s interpretive guidance. Since then, we issued two E-Updates providing insights on additional revisions to the DOL’s guidance. On July 20, the DOL once again supplemented its guidance on the FFCRA and its final regulations. In addition to the revised guidance on the FFCRA, the DOL revised its COVID-related guidance on the Fair Labor Standards Act (“FLSA”) and the Family Medical Leave Act (“FMLA”).
PPSC’s updated FFCRA guide included with this E-Update (accessible through the link below) incorporates all of the statutory and regulatory guidance on the FFCRA through July 20, 2020, including key provisions from the DOL’s Questions and Answers and its final regulations implementing the FFCRA. The guide includes a Table of Contents linked to the listed topics.
For additional details on the latest DOL guidance, please see the highlighted sections of our PPSC guide to the FFCRA, available at the link below.
Summary of New FFCRA Questions and Answers
In the July 20 additions and changes to the FFCRA Questions and Answers, the DOL addressed the interplay between the FFCRA and furloughs, as well as COVID-19 testing. The DOL’s update to its FFCRA Questions and Answers includes the following:
1. An employee who returns to work after taking FFCRA paid sick leave to care for a family member exposed to COVID-19 has the right to be restored to the same or an equivalent position. However, an employer is permitted to temporarily reinstate the employee to an equivalent position requiring less interaction with co-workers, or require them to telework.
2. Employers are permitted to require all employees to test negative for COVID-19 before returning to work. However, employers cannot institute a policy that limits testing to employees returning from FFCRA paid sick leave because this could constitute discrimination or retaliation. In crafting a testing policy, employers should review the guidance issued by the Equal Employment Opportunity Commission (“EEOC”) to ensure COVID-19 testing practices do not violate the Americans with Disabilities Act (“ADA”). 
 The EEOC’s guidance includes its Guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act and its COVID-19 Technical Assistance Publication. We issued E-Updates on the EEOC’s guidance on May 11, June 16, and June 18.
3. The time an employee spends on furlough does not count against their FFCRA/FMLA leave entitlement.
4. Employers may not extend a former employee’s furlough just because that employee would need to take FFCRA leave if they were called back to work. This could constitute discrimination or retaliation against the employee.
5. Employees are not required to exhaust all 80 hours of their FFCRA paid sick leave during one leave request. Employees who use a portion of FFCRA paid sick leave may use the remainder for subsequent leaves. When employees request subsequent leaves, employers should treat those requests separately and ask the employee for appropriate documentation for each leave request.
Summary of New FLSA Questions and Answers
The DOL’s July 20th additions and changes to its FLSA Questions and Answers include the following:
Telework (FLSA Question 14)
Hourly, non-exempt employees must be paid for the hours they actually work, regardless of whether the employee is teleworking. Employers have an obligation to compensate employees for the hours of telework that employers know or have reason to believe have been performed. This obligation remains regardless of whether the hours were authorized or not.
Importantly, the DOL noted that an employer may generally satisfy its obligation to compensate teleworking employees by providing reasonable time-reporting procedures and compensating employees for all reported hours. In light of the increasing COVID-19 related lawsuits, employers should review their time-reporting policies and implement changes (as needed) that clearly communicate timekeeping requirements. Moreover, employers should be cautious about emailing, calling, or otherwise communicating with non-exempt employees outside of their scheduled work hours to avoid an allegation that the employer had “reason to believe” work had been performed.
Employees who perform unauthorized work the employer knew or should have known about should be compensated for that time, but may be disciplined for violating the employer’s work rules, such as a rule requiring prior authorization for overtime.
Flexible Work Schedules (FLSA Question 15)
Generally, the time between the performance of the first and last principal activities of a workday is compensable work time. The DOL is now relaxing this general rule and is encouraging flexibility during the COVID-19 pandemic by explaining that the time between an employee’s first and last principal activities in a workday will not be automatically counted as hours worked. The DOL’s flexibility allows for an employer and employee to agree to a more piecemeal telework schedule. For example, an employee may work between the hours of 7:00 a.m. to 9:00 a.m., 11:30 a.m. to 3:00 p.m., and 7:00 p.m. to 9:00 p.m. Although the time between the first principal activity (7:00 a.m.) and the last principal activity (9:00 p.m.) is 14 hours, only the hours actually worked (7.5 hours) is compensable work time.
California employers wishing to take advantage of this flexibility should require non-exempt employees to separately record the start and stop times of all working periods throughout the day. Without these records, an employer would be unable to effectively respond to a later claim that the entire day was compensable time.
Hazard Pay (FLSA Question 17)
The FLSA does not require hazard pay. However, employers should review state or local guidance, which may impose other obligations.
For example, on June 15, 2020, the Seattle City Council passed an ordinance requiring hazard pay for certain food delivery workers.
Exempt Employees - Employee Classification (FLSA Questions 16, 18, 19)
The DOL clarified that various pandemic-related realities in the workplace will not jeopardize an employee’s exempt status.
First, the DOL explained that exempt employees may temporarily perform non-exempt duties without jeopardizing their exempt status. Second, an employee’s exempt status is not affected by taking FFCRA paid sick leave or expanded family and medical leave. Third, an employee’s reduction in salary due to economic reasons related to COVID-19 or a related economic slowdown will not affect an employee’s exempt status.
As it relates to salary reduction, employers may prospectively reduce the salary of exempt employees as long as it is predetermined and bona fide. Thus, employers cannot make after-the-fact deductions from salary based on the employer’s daily or weekly needs, and the employer’s purpose for salary reduction must actually be related to COVID-19 or an economic downturn rather than due to the particular employee’s quality or quantity of work.
However, in any of the above circumstances, an employee’s exempt status under the FLSA will only be protected if the employer continues to pay the employee on a salary basis of at least $684 per week.
California employers should note that the agency which enforces state wage and hour laws (the Department of Labor Standards Enforcement or “DLSE”) has not similarly relaxed its interpretation of overtime exemption rules under California law. In fact, the DLSE has previously opined that linking an exempt employee’s salary reduction directly to a reduction in hours, even when done prospectively, is akin to treating the employee as an hourly worker and could thus jeopardize their exempt status. Finally, the minimum salary to qualify for exempt status under California law in 2020 is $54,080.
Summary of New FMLA Questions and Answers
First, the DOL addressed how to establish a “serious condition” under the FMLA in light of the increased use of telemedicine due to the COVID-19 pandemic. Generally, the FMLA requires in-person visits to a doctor to establish a serious health condition. Until December 31, 2020, telemedicine visits will qualify as “in-person visits,” for purposes of establishing a serious health condition under the FMLA. For a telemedicine visit to qualify as an “in-person visit,” for this purpose, the visit must:
- include an examination, evaluation, or treatment by a healthcare provider;
- be performed by video conference; and
- be permitted and accepted by state licensing authorities.
Additionally, electronic signatures will qualify as signatures for this purpose until December 31, 2020.
The California equivalent to the FMLA, the California Family Rights Act or “CFRA,” does not expressly require in-person medical visits to qualify as having a serious health condition, or original signatures. Therefore, federal and California law are in sync on this issue for now.
Testing (FML Question 13)
Next, the DOL explained that employers do not violate the FMLA by requiring COVID-19 testing for employees who return to work. However, as noted above, employers should carefully review the various guidance issued by the EEOC to ensure their COVID-19 testing practices do not run afoul of the ADA.
In many cases a California employee’s FMLA leave for a serious health condition will run concurrently with leave under the CFRA. Notably, the California Department of Fair Employment and Housing has stated that employers may require a medical release before employees return to work from CFRA leave, but it has not addressed whether an employer may require COVID-19 testing. California employers may wish to take their lead on this testing issue from guidance published by the CDC and California Department of Public Health.
The entirety of the DOL’s Questions and Answers on the FMLA can be accessed through this link.
Our team at PPSC is here to help in any way we can. Although many of our lawyers are working remotely, we have a dedicated coronavirus response team, and we remain fully operational and dedicated to assisting our clients during this challenging time. Please feel free to reach out to your PPSC lawyer, or any of the lawyers listed below, for questions related to the FFCRA or any other needs you may have.
|Denise Brucker||Kris Darrough||Fred Plevin|